CHAN.] [CHAN. WILSON V. THE NORTHAMPTON AND BANBURY JUNCTION RAILWAY COMPANY. Greene, Q.C. and Methold, in support of the motion. Nalder, for the plaintiff in the second suit, said that he was quite willing to consent to the transfer, and had offered to do so, on the costs being made costs in the cause. The applicant having occasioned this application, by refusing that offer, ought to be made to pay the costs subsequently incurred. The LORD CHANCELLOR (Selborne) said that if the plaintiff in the second suit had opposed the application, he would probably have had to pay the costs. But he did not oppose, and if any previous application had been made to him, most probably he would have consented. The first he heard of the matter was through a notice of motion for the transfer, on receipt of which he offered to consent to the transfer if the costs were made costs in the cause. That was a reasonable offer, but it was refused. The order now would be, that the costs up to the time of that offer should be costs in the cause, and the applicant must pay the subsequent costs of the transfer. Lord Justice JAMES was of the same opinion. Solicitor for the applicant, H, Fluker. Thursday, Feb. 19. (Before the LORD CHANCELLOR (Selborne) and the LORDS JUSTICES.) WILSON V. THE NORTHAMPTON AND BANBURY JUNCTION RAILWAY COMPANY. Specific performance-Railway company-Agreement to build a station-Vaguenesss of agreement -Damages. The promoters of a railway company agreed with a landowner that, in consideration of his withdrawing all opposition to a Bill before Parliament to authorise the construction of the railway, they would "erect, set up, and construct" a station on his land, but the agreement did not specify what kind of a station was to be erected, nor did it contain any provisions as the use or maintenance of the station when erected. On a bill by the landowner to enforce specific performance of the agreement: Held (affirming the decision of Bacon, V.C.) that the agreement was too vague in its terms to be the subject of a decree for specific performance, but that the plaintiff was entitled to an inquiry as to damages. THIS was an appeal from a decision of Bacon, V.C. The hearing in the court below is reported in 29 L. T. Rep. N. S. 879, where the facts of the case are sufficiently stated. The Vice Chancellor held that the agreement was too vague in its terms to enable the court to make a decree for specific performance, but directed an inquiry as to the damages occasioned by the breach of contract, and ordered the defendant company to pay the damages when ascertained, and to pay the costs of the suit. From this decision the plaintiff appealed. Eddis, Q.C., and Daniel Jones, for the appellant. -The agreement is not too vague to be the subject of a decree for specific performance. The intention was to build on the appellant's land a station suited to the wants of the neighbourhood. The company has shown what kind of a station that would be by erecting one within two miles of the site agreed upon. [Lord Justice JAMES. The agreement is only to erect, set up, and construct a station. There is nothing to compel the company to keep it in repair when erected, or to stop any trains at it.] The word station implies that some trains are to stop at it, at least one train a day each way as required by Act of Parliament. [Lord SELBORNE.What are the words of the statute as to parliamentary trains ?] The 6th section of the 7 & 8 Vict., c. 85, provides that on and after the several days hereinafter specified, all passenger railway companies . . . . shall, by means of one train at the least to travel along their railway from one end to the other of each trunk, branch, or junction line belonging to or leased by them once at the least each 66 way on every week day-with certain exceptions-provide for the conveyance of thirdclass passengers to and from the terminal and other ordinary passenger stations of the railway, &c. [Lord SELBORNE.-There is nothing at all in the agreement to show that this is to be a passenger station.] The neighbourhood required a passenger station, and the company have shown what they intended by erecting an ordinary passenger station at a distance of two miles from the proposed site. Damages would not be an adequate compensation for the breach of the agreement, and Store v. the Great Western Railway Company (2 Y & C. C. C. 48) shows that the court has jurisdiction to enforce specific performance when the plaintiff's interest is not capable of adequate compensation in damages. And in Sanderson v. the Cockermouth and Workington Railway Company (11 Beav. 497) specific performance of an agreement was decreed, although the terms of the agreement were vague, and it was held that those terms must receive a reasonable interpretation. So important is it for us to have specific performance of the agreement, that we are willing to take a third-class station in preference to damages. [Kay, Q.C.-Before the filing of the bill the plaintiff offered to accept a perpetual annual rentcharge of £100 instead of the station. That shows that a money payment will be adequate compensation for his loss.] The inquiry as to damages directed by the Vice-Chancellor renders it necessary to ascertain what kind of a station was meant in the agreement, and it would be equally easy to put a construction on the word for the purpose of specific performance. They also cited: Lloyd v. The London, Chatham and Dover Railway Company, 12 L. T. Rep. N. S. 363; 3 De. G. J & S. 568; Lytton v. The Great Northern Railway Company, 2 K. & J. 394; Hood v. The North Eastern Railway Company, 20 L. T. Rep. N. S. 970; L. Rep. 8. Eq 666; s. c. on app. 23 L. T. Rep. N. S. 206; L. Rep. 5 Ch. 525; Wilson v. The Furness Railway Company, 21 L. T. Rep. N. S. 416; L. Rep. 9 Eq. 28; Phillips v. The Great Western Railway Company, 26 L. T. Rep. N. S. 157; L. Rep. 7 Ch. 409. Kay, Q.C. (with him Kekewich) for the respondents, was only called upon as to costs-The ViceChancellor having given the applicants the utmost relief to which they can be entitled, their appeal ought to be dismissed with costs. The Lord CHANCELLOR (Selborne). The principle as to specific performance which is material to be considered in the present case, is this: The CHAN.] WILSON V. THE NORTHAMPTON AND BANBURY JUNCTION RAILWAY COMPANY. court gives specific performance instead of damages, when it can more perfectly, and in a manner more certainly just to all parties, execute an agreement, and it by no means grants specific performance when there is any doubt or difficulty in doing that. An agreement, which is not so specific in its terms, or in its nature, as to make it certain that better justice will be done by attempting specifically to enforce it than by leaving the parties to their remedy in damages, is not one which the court will, as it is said, specifically enforce. Now, in this particular case, the only words expressing with certainty anything at all which we have to deal with, are the words of the engagement adopted by the company, that "they will at their own cost, in a good, substantial and workmanlike manner, erect, set up and construct a station to be made on Nos. 24, 25, and 26, in the parish of Wappenham, or some part or parts thereof." If it had been the intention of the parties to exclude any contract as to the use of the station when erected, they could hardly have adopted better words for that purpose; for every word in the contract is applicable to the making of the station, and not to the using of it. The words are " erect, set up and construct in a good, substantial and workmanlike manner. Now, it is suggested that that must have been with a view to use; but if it was with a view to use, which is very probable, it is not so expressed; and the court, if it attempted to impose anything like a definite obligation as to use, would not be executing the written agreement, but enlarging it. If anything whatever is to be implied as to use, in that respect the agreement is vague and indefinite. It is definite and not vague only as to erecting, setting up and constructing a thing capable of being erected, set up and constructed; and with regard to that thing there is no other definition than that which is involved in the necessary meaning of the words "a station." I apprehend that that expression is definite to this extent, that it means a stopping place on the line of railway-that is, a place at which traffic of some description may be taken up and set down from the carriages moving upon the line. To that extent, it is definite and not vague; but the moment you suggest any considerations as to the nature and the degree of the convenience and accommodation intended by the parties or in their view, then it is wholly vague and wholly indefinite; and there are no elements which would enable the court, adhering simply to the agreement and not going beyond it, to determine how those uncertainties are to be reduced to certainties. The Vice-Chancellor has thought that under those circumstances the case which I agree is so far a strong case the company coming to the court and saying distinctly, "We admit ourselves to be bound by this agreement, but we refuse to perform it "the Vice-Chancellor has thought that it is a case in which the court cannot satisfactorily do justice, certainly not better justice than might be done at law, by means of a decree for specific performance, but that having now authority to do what a court of law could donamely, to give damages, it will be able in that way to do full and complete justice, that is, the best justice of which the case is capable. It has been a matter of some surprise to us that the plaintiff should have been dissatisfied with that conclusion; for if the view which has already been expressed is correct, supposing the court could [CHAN. have properly granted him specific performance, it could not have extended the express obligation of the company, and therefore could only have given him the very minimum of that which is expressed in the terms creating the obligation; whereas in a decree for damages, as it appears to me, the plaintiff will be entitled to the benefit of such presumptions as, according to the principles of law, are made in courts both of law and equity against persons who are wrongdoers in the sense of refusing to perform, and not performing their agreements. We know it is a sound maxim that every reasonable presumption may be made as to the benefit which the other parties might have obtained by the bona fide performance of the agreement when the matter is to be determined in the way of damages. On the same principle, no doubt, in the celebrated case of the diamond (it might have been paste), when the ring which had been stolen was not forthcoming, a great judge directed the jury to presume that the cavity had contained the most valuable stone which could possibly have been put there. I do not say that to the letter that analogy is to be followed here, because the principle is, in all cases, to be reasonably applied. Being reasonably applied in all such cases, it appears to me that a jury may with perfect propriety take into account the probable benefit which the plaintiff's estate might derive from the existence of a stopping place on the line to which traffic might have been attracted, or which might have been convenient to the persons resident on his estate. They may take into account the reasonable probability that if the company had bona fide performed the agreement, they would have made the station in a reasonable manner, and that they would not have been embarrassed with any questions as to the mode of construction, or as to the extent of accommodation, or the nature or the duration of the use; and they may also take into account the reasonable probability that if the company had made the station they would, in their own interest, have thought it worth while to make a reasonable use of it. All those are elements, no doubt, more or less of an indefinite character, but proper for the consideration of a jury on the question of damages, and proper, when this court discharges the functions of a jury, for its consideration. It appears to me, therefore, that perfect justice may in that way be done between the parties; but in the other way, for my part, I do not see how it could possibly be done. Looking at the attitude assumed by the defendants, although we cannot but think that the plaintiff would have been better advised if he had been content with the decree which he obtained, yet we think ourselves justified in marking our disapprobation of the conduct of the defendants in refusing to perform their agreement, by declining to give them the costs of the appeal. The appeal will, therefore, be dismissed without CHAN.] PRESCOTT v. BARKER. [CHAN. Thursday, Feb. 19. PRESCOTT V. BARKER. Will-Construction-Wills Act (1 Vict. c. 26) 8. 26-Devise of all lands and hereditaments-Strict settlement-Leaseholds-Contrary intention. The 26th section of the Wills Act throws the onus probandi upon those who assert that a devise of "lands does not include leasehold estates in land, but that onus is satisfied by showing from the whole will sufficient grounds to satisfy a reasonable man that the testator did not intend by the word "lands" to pass leasehold estates. A testator, by his will made in 1861, devised all his messuages, lands and hereditaments in the county of Middlesex, and all other lands and hereditaments in England belonging to him, to the use of his eldest son for life, with remainder to his eldest son's issue in tail male, with an ultimate remainder to his own right heirs. He also bequeathed all his money, securities for money, goods, chattels, and personal estate to trustees upon trusts corresponding with the trusts of the hereditaments thereinbefore devised in strict settlement, but so that the same should not vest absolutely in any person thereby made tenant in tail by purchase unless such person should attain twenty-one. The As to the devised realty, the will contained a power of sale, empowering the trustees to invest the proceeds of any sale in the purchase of frecholds or leaseholds convenient to be held therewith. will also contained a bequest of certain chattels and heir-looms in strict settlement, so far as the rules of law and equity would permit. The testator, both as to any leaseholds to be purchased under the power, and as to the chattels, repeated the proviso that the same should not vest absolutely in any person thereby made tenant in tail by purchase, unless such person should attain twenty-one. At the time of his death, the testator was possessed of both freehold and leasehold estates in the county of Middlesex: Held (affirming the decision of Malins, V. C.) that the leaseholds did not pass under the devise of lands and hereditaments by virtue of the 26th section of the Wills Act, inasmuch as there was sufficient indication of a contrary intention appearing on the face of the will; but that they passed under the ultimate bequest of personal estate. THIS was an appeal from a decision of Malins, V.C. The case came before the court in the shape of a special case, and the hearing in the court below is reported in 29 L. T. Rep. N. S. 727, where the facts of the case are fully set out. The Vice-Chancellor held that the testator's leasehold estates in the county of Middlesex did not, by virtue of the 26th section of the Wills Act, pass under the devise of his "messuages, lands, and hereditaments, in the county of Middlesex," inasmuch as a contrary intention appeared upon the face of the will, but that they passed under the residuary bequest. From this decision the defendants, other than Frances M. Barker, appealed. Bristowe, Q.C. and Cust, for the appellants.-It is clear that by the 26th section of the Wills Act, the leaseholds in question pass under the devise of "all my messuages, lands, and hereditaments in the county of Middlesex," unless a contrary intention appears by the will. We submit that there is no indication of a contrary intention in the will. This case is governed by Wilson v. Eden (11 Beav. 237; 5 Ex. 759; 18 Q. B., N. S. 474; 16 Beav. 153). In that case there was a devise of "my lands, tenements, and hereditaments at or near Windlestone" and other places "in the county of Durham," to trustees to the use of A. for life, with remainder to his first and other sons in tail male; and in default of such issue to B. and his heirs; and it was held that leaseholds to any passed under this devise. In the hearing of that case before the Queen's Bench (18 Q. B., N. S., 487), Lord Campbell said: "But it is further contended, that the leaseholds do not pass under this devise, because a contrary intention appears by the will. Now, in examining whether there be such a contrary intention, I consider that we are not to look from the general language of the will, looking at all such facts as may fairly be taken into consideration in construing it. Before the passing of stat. 7 Will. 4 & 1 Vict. c. 26, the leaseholds would not have passed under such a devise as this, unless the will showed elsewhere a clear intention that they should do so; but since the Act, a contrary intention must be positively shown, in order to prevent them from so passing." A contrary intention cannot be said to be positively shown in the present case. In Wilson v. Eden, when it came before him in the first instance (11 Beav. 251), Lord Langdale thought that the fact that leaseholds were incapable of being the subject of a strict settlement, was a sufficient indication that the testator did not intend them to pass under the devise; but he sent a special case to the Court of Exchequer, which held that the leaseholds passed under the devise (5 Ex. 759), as did also the Court of Queen's Bench on a second special case (18 Q. B., N. S. 474), and when the case came back to the Rolls, Lord Romilly agreed in that decision (16 Beav. 153). Yet the fact that the leaseholds are incapable of being the subject of a strict settlement, such as is made in the devise in this case, is the strongest indication of the testator's intention that the leaseholds should not pass under the devise. The Vice-Chancellor swallowed a camel in getting over that difficulty, and strained at a gnat in the shape of some minor points which he thought were sufficient indications of a contrary intention. They also referred to technicalities, but to form our conclusion Howe v. Earl of Dartmouth, 7 Ves. 137; Cotton, Q.C. and C. Comyns Tucker, who appeared in support of the Vice-Chancellor's order, or Whitehead and Bryce, who appeared for the trustees of the will, The LORD CHANCELLOR (Selborne) said: We are of opinion that the Vice-Chancellor's judgment and decision in this case are clearly right. The argument of the appellants is founded on the 26th section of the statute called the Wills Act, but, as we understand it, the object of that section was to abrogate a merely technical rule, tending in many cases to defeat the intention of testators naturally using language, and not to establish instead of that technical rule, another technical rule, which in particular cases might have a like effect in the contrary direction. The intention is to be regarded, and really all that clause does which is material for the present purpose is, in conformity with what I should say was rightly considered by the Legislature to be the natural primâ facie use of language, to alter the onus probandi, and to throw it on persons who deny that in a will "land" - was meant to include leasehold estates in land. To that extent, of course, the statute does operate in the appellants' favour, because the word "land," being found in the parts of the will under which the appellants claim, the effect of the statute is to throw some onus probandi on the other side, and to show that in those parts of the will, the word "lands" does not include the leaseholds in question. But, when that onus probandi is thrown on the other side, all that they have to do is to show to the court from the whole will, sufficient grounds to satisfy a reasonable man that the intention of the testator in that place was not by the word "lands" to pass the leasehold estates. So the rule is stated by the Court of Queen's Bench in the passage read to us by Mr. Bristowe from the case of Wilson_v. Eden (18 Q. B., N. S., 487), that in acting under that clause the court is not to look to any technicalities, but to collect the intention from the whole will, a sound maxim in all cases. I was reminded, by the nature of the argument on the other side, of a somewhat parallel, although converse case, and not depending on the statute, namely, the case of Coard v. Holderness (20 Beav. 147), where a testator gave "all estate, effects, and property whatsoever," which he was or might be possessed of or entitled to upon trust for his children, plainly throwing upon the heir-atlaw the onus probandi that the real estate did not pass by that gift. But that onus probandi, in the case of Coard v. Holderness, was held to be satisfied, not of course by the same detail of proofs as we have here, for the indications of one will are not the indications of another will, but by a process similar in principle to that which the Vice-Chancellor has applied, and which we apply to the present will; that is, by looking at every part of the following devise, and seeing whether you would or would not, by applying it, as primâ facie it ought to have been applied, to real estate, be defeating and departing from the intention manifestly indicated by the expressions which occurred from time to time in the clauses which related to that devise. The Master of the Rolls in that case, as to the principle on which he investigated it, which I think is equally applicable here, said this (20 Beav. 152): "I am of opinion that the burden of proof is thrown upon the heir-at-law, to show that these words are, according to the settled rules of construction, to be cut down so as to include personal estate only. I think that the rest of the will does justify the court in coming to the conclusion that these words were intended to be confined to personal estate. The view I take of this case is this: that these words are to be construed with due regard to the general scope and object of the testator, and that for this purpose the whole will must be looked at together." So looking at the will, the first thing, of course, which occurs, is the fact which, and which alone, is common to the present case and Wilson v. Eden, that here the gift into which Mr. Bristowe would seek to import the leasehold estates is a gift to uses on strict settlement, which in their entirety and integrity cannot be applied to leasehold estates, but must more or less fail, that is, fail from the time at which the first tenant in tail is reached; there they must stop by the irresistible operation of law as to the leasehold estates, while they would go on as to the freeholds. 66 [CHAN. The whole intention, therefore, apparently indicated by such a settlement is capable of taking effect as to the freehold estates, but is not capable of taking effect as to the leasehold estates. Lord Langdale appears to have thought, in that case of Wilson v. Eden (11 Beav. 252), that that alone was a sufficient ground for holding that the intention could not be to include leasehold estates; and Mr. Cust appears to have felt that there was some considerable force in Lord Langdale's view, for he speaks of the Vice-Chancellor as having overcome that difficulty, which was like swallowing a camel, all the other difficulties in this will being in comparison to that but as gnats. I think that Lord Langdale, who was an eminent judge, had as much reason as this, that a construction which cannot take effect equally as to all the subjects of the gift, when they are blended together, is probably and prima facie one which had not presented itself as involving those differences as to the different subjects of the gift to the mind of the testator; but the courts of law, and eventually this court, in Wilson v. Eden, came to the conclusion that that standing alone was not sufficient; and the argument now seems to be that, because it is not suffi cient standing alone, it is to have no weight at all, even if it be not a weight in the contrary direction, when accompanied by various other indications in the context of the will which support that which might primâ facie, perhaps, have been inferred if anything was to be inferred from that kind of disposition standing alone. I am not very much surprised that the courts of law should have come to that conclusion. It is not at all necessary for me to affirm or to express any opinion of my own independently of that authority by which undoubtedly we are bound. I am not very much surprised, because one knows that in other cases not depending upon statute, such as Forth v. Chapman (1 P. W. 663), courts of law had become accustomed to very violent divorces, upon the construction of the same words, of different kinds of property which apparently the testator had intended to go together. But admitting that that is not by itself a sufficient ground, and would not by itself sufficiently discharge the burden of proof here lying upon the respondents, what is the present will? Now the first thing that strikes us in the present will, and which is entirely different from anything in Wilson v. Eden is this, that whereas in Wilson v. Eden there was a gift of land in strict settlement to one set of persons, and another gift of the testator's residuary personal estate absolutely to another person-a single individual-the court having to determine which of two conflicting interests was to prevail with respect to the leasehold estates; we have here on the whole will the most perfect evidence of intention, as far as the testator could possibly do it, to keep his whole estate, personal as well as real, together, and to make the whole by the most effectual legal means which he could employ the subject of one strict settlement in favour of one designated succession of persons to take beneficially one part as well as the rest, as far as possibly could be done consistently with the rules of law and equity; and when we follow that scheme in detail, we find, as it appears to me, almost at every step where we could possibly look for special indications of purpose, indications of a purpose inconsistent with that separation and divorce of the leaseholds from the freeholds which would be the practical result of the success of the appellants' argument. In the present will there is a clause, the force and effect of which I had not myself distinctly perceived until it was drawn to our attention in reading the judgment of the Vice-Chancellor, a clause which would be entirely and absolutely defeated with respect to the freeholds if the appellants' argument were to prevail. It is this: that as often as any person who, under the previous words, was designated as tenant for life, or tenant in tail by purchase, should be under the age of twenty-one, the testator's trustees should enter into the possession or the receipt of the rents, issues, and profits of the same premises-evidently all and every part of them.and receive and invest and accumulate, subject to maintenance and proper charges, the whole of those rents during the minority of the tenant for life, or tenant in tail by purchase; and if that person attained twenty-one, then to pay over to him the accumulated rents, and if he died under twentyone, then to invest those accumulated rents in the purchase of freehold land, to be settled to the same uses. It is, as far as I can see, difficult, if not quite impossible, to reconcile the operation of that clause with the argument which, as soon as ever a tenant in tail came into esse, vested in him the whole of the leaseholds, there being in this part of the will no provision whatever to prevent leaseholds, if they pass by the words of the devise, from vesting absolutely in the first tenant in tail at the moment of his birth, or at the moment of the testator's death, as the case might be. That is the first indication, and I think it a very strong one. The second is at that part of the will where a power of sale is given applicable to the whole property (if leaseholds pass, to leaseholds as much as to freeholds), and that which results from the exercise of that power of sale is to be invested-the words of the clause as to investment being, that it may be "invested in the purchase of other lands or hereditaments in England or Wales, for an estate or estates of inheritance in fee simple or of lands of a leasehold or copyhold or customary tenure, convenient to be held therewith," the first place in which leaseholds are expressly mentioned in the will, except somewhere as a security on which money might be lent, which is not material. The testator there authorises investment, not upon any leaseholds, but upon leaseholds convenient to be held with the settled estates, of money that might have arisen from a sale of part of the settled estates; and he goes on to distinguish what is to be done in the case in which freeholds are purchased, and in the case in which leaseholds, copyholds, or customary estates are purchased, If freeholds of inheritance are bought, they are to be settled to the same uses to which the hereditaments, by the sale or exchange of which the purchasemoney should have arisen, previously stood settled, the word "hereditaments "alone being used as signifying the subject-matter of the sale, but which might be anything that was part of the settled estates, but hereditaments" being a word which, after the statute, as I conceive, as well as before, means heritable property. If the thing purchased is a freehold inheritance, it is to be settled to the same uses; but the will goes on to provide that if that which is purchased shall be of leasehold, copyhold, or customary tenure, then it is to be settled "upon and for such trusts, intents, and purposes as shall or may correspond with and be similar to the uses, trusts, intents, and purposes," &c., " to, 66 [CHAN. upon and for, with, under, and subject to which the hereditaments"-again the word "hereditaments," and nothing else "by the sale or exchange of which the purchase-money of the hereditaments so as last aforesaid directed to be settled shall have arisen, or in exchange for which the hereditaments so as last aforesaid directed to be settled shall have been obtained, in case the same had not been so sold or exchanged, would under and by virtue of this my will have stood settled and assured, or as near thereto as the different tenure and quality of the premises, and the rules of law and equity, and the deaths of parties and other intervening accidents will admit of, but not so as to increase or multiply charges; and so that if any of the lands purchased or taken in exchange shall be held by a lease for years, the same shall not vest absolutely in any person hereby made tenant in tail male by purchase, or in tail by purchase, who shall not attain the age of twenty-one years, but on his or her death under that age, shall go, devolve, and remain in the same manner as if they had been freeholds of inheritance and had been settled accordingly." Now just let us consider the effect of that. I have already noticed the pervading use of the word "hereditaments" as describing the subject of the sale, though the power evidently extends to everything that is in the settlement; but secondly, if, according to the argument of the appellants, leaseholds were in the settlement, then what is to be done with the proceeds of those leaseholds? The testator says, if leaseholds, then they shall be settled upon such trusts and so on, as shall or may correspond with, and be similar to the trusts upon which the freeholds are settled, but so that no leaseholds shall vest in a tenant in tail by pur chase who dies under twenty-one. So that actually, if the argument for the appellants were right, this would happen; a leasehold settled by the original settlement in a particular manner being sold, the proceeds of that sale could not be invested in other leaseholds to the same uses, but they must be settled to different uses, which would prevent a tenant in tail by purchase from taking if he died under twenty-one. Then it does not stop there. There is an equally careful provision against the vesting in such a tenant in tail absolutely of the heirlooms in the mansion house. I agree that there the reference is to the trusts of the mansion house, and not to the other property, so that the argument has not in all points the same cogency; and lastly we come to the "whole of the general personal estate;" words which most clearly include the leaseholds if they do not pass before, and that is to be converted. There is an annuity to be paid out of it to the tenant for life; there is to be an accumulation, I think, of 1500l. a year, and the whole eventually is to be laid out in the purchase of real estate to be settled to the same uses as those on which the original devise is made. To my mind there is in every one of those clauses a distinct, and in the whole of them a cumulative indication of intention that leaseholds should not pass by the specific devise in the settlement, but should pass by the ultimate gift of the personal estate, and therefore I am of opinion that the Vice-Chancellor's decree must be affirmed with costs. Lord Justice JAMES.-I am of the same opinion. I cannot say that I do not, to some extent, agree with Mr. Čust when he says that a camel was swallowed in that case of Wilson v. Eden. |